The false paradox: freedom of expression and sexist hate speech

When we talk about freedom of expression we are within the paradigm of human rights. Human rights are indivisible, interrelated and interdependent, which means that the improvement of one right facilitates advancement of the others and the deprivation of one right adversely affects the others. This also means that they should not be hierarchized, that freedom of expression does not trump the right to live a life free of violence. It also means that there are limits to freedom of expression that are legitimate in order to strike a balance with other human rights. As a society we seem to have been able to understand this very clearly when it comes to hate speech and racism, but for some patriarchal reason the issue becomes subject of debate when we talk about hate speech and sexism.

The Council of Europe’s Committee of Ministers Recommendation defines hate speech as: “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti- Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”1 In this definition it is important to remark that gender is not mentioned explicitely as one of the risk factors for discrimination and hostility, and one really cannot be expected to place women under the category of minorities as we represent more than half of the world´s population.

In contrast, feminist Dona Lilian argues that: “sexist speech can be framed as hate speech, as it functions to denigrate women as a group, in the service, ultimately, of patriarchal subjugation. Therefore, no matter how unsophisticated it may seem to talk simplistically about ‘women’ and ‘men’, the world we live in is still organized around those categories. Moreover, it is organized in such a way that ‘women’ as a class are subordinate to ‘men’ as a class, and it systemically discriminates against women.”2

Given the popularity and presence of social networks in the everyday lives of millions, there are several iniatives that have dealt with the problem of hate speech online from the perspective of the users. The Lithuanian NGO Tolerant Youth Association created an autonomous system that allows people to report bashers directly to prosecutors. There is an anti-racist initative that promotes a bot in Twitter that retweets racist content tagging it as such. Also, Aktion Kinder des Holocaust has the project Internet Streetworking, which contacts the authors of pro-Nazi or anti-Semitic statements.

These are all valuable options that are being implemented to handle specific cases, but there is a stakeholder that is important to mention in this context: the internet intermediaries who own these social networks and sites through which hate speech is propagated. Can internet providers prevent the use of their services by haters/ extremists? The Anti-Defamation League answers: “Yes. Commercial providers may prohibit users from using their services to send anti-Semitic, racist or bigoted messages. Such prohibitions do not violate the U.S. constitutional rights of users because a commercial provider is not a government agency. Because the relationship between providers and users is usually strictly based on contract (users often click “I agree” to a site’s terms of use after signing up), it is the agreement between the provider and the user, and not the U.S. Constitution, which governs the relationship.”3

So commercial providers can regulate usage, but should they? Do internet intermediaries actually have a responsibility or a role to play regarding the content that circulates through their services? The second pillar of the Protect, Respect and Remedy Framework, developed by the United Nations Commission on Human Rights, defines: “the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur.”4

Hence, internet corporations do have an important role to play in taking measures to ensure that human rights are not infringed. This includes women´s rights to live a life free of violence. In its 15 years Review of the VAW Mandate, the UN Special Rapporteur on Violence Against Women addressed the issue of accountability for actions of non-State actors, including multinational corporations. The Special Rapporteur on VAW recommended gender impact studies, inclusion of gender as part of corporate responsibility, and the institutionalization of codes of conduct incorporating human rights within corporations or as part of social responsibility of corporations, rather than complete reliance upon enforcement by States. Also, the second key principle of The Guiding Principles of the Telecommunications Industry Dialogue on Freedom of Expression and Privacy, recommends conducting regular human rights impact assessments, which could open the door for the gender impact assessments recommended by the UN Special Rapporteur on VAW.

There is growing awareness about the importance of these issues from the perspective of internet corporations, although it is not always clear how to move forward. In this sense it is relevant to approach the issue in partnership. Jermyn Brooks, Independent Chair of the Global Network Initiative, United States, stated that: “companies need not face these challenges on their own. By working together with civil society organizations with expertise on the ground in challenging markets, academic experts and technologists with in-depth expertise on emerging issues, and investors who see the profit opportunities in a socially responsible approach, companies can more accurately gauge risks and identify opportunities to advance rights.”5

The one thing we cannot do is shelter under the false paradox of freedom of expression to remain passive while online violence against women advances. We must recognize that sexist hate speech is a form of violence and just as we have done with racism or xenophobia, we each must play our part in putting a stop to this form of gender based violence.

We restrict speech all the time. By necessity there are exceptions to all rights. As the author notes, the reason there are exceptions to all rights is that, inasmuch as no right is nor can coherently be absolute, rights inevitably come into conflict with one another. When they do, as when a right causes harm to others, thereby infringing on the latter’s rights, one or the other right must be curtailed. There is no foundation for giving speech priority over other rights, such as equality. The First Amendment does not entail that one is allowed to express oneself in any way one wishes or at any location or at any time one wishes. Lying under oath is not protected speech. Nor are threats, yelling ‘fire’ in a crowded theater or any speech that can cause panic and hence harm, some forms of defamation, the incitement to imminent lawless action, insider trading, fraudulent promises, copyright infringement, blackmail, bribery—the mere speech act of offering a police officer money to overlook a traffic violation is prohibited speech—unlicensed medical advice, misleading advertising—such as claims regarding the efficacy of drugs. We agree on these limitations because of the harms such speech can cause, harm that infringes on other rights more vital to individual and social flourishing.

Those who think that freedom of expression occupies a sacred position have to show how it is distinguished from all other forms of conducts, all of which are regulated. (It is, in fact, very difficult if not impossible to show that freedom of expression can be justified as a human right at all (see, for example, Is There a Right of Freedom of Expression, Larry Alexander; 2005, Cambridge University Press).) Frederick Schauer has shown that we must give up the hypothesis that speech causes less harm than non-speech conduct (“Phenomenology of Speech and Harm,” in the journal Ethics, 1993). Specifically on hate speech, see Susan Brison’s The Autonomy Defense of Free Speech (also in Ethics, 1998) and her “Hate Speech” (2013) forthcoming in the International Encyclopedia of Ethics. Hate speech is that which, as Brison puts it, “vilifies, harasses, intimidates, or incites hatred toward an individual or group on the basis of a characteristic such as race, ethnicity, religion, gender, or sexual orientation.” This is speech that causes harm that outweighs the harm caused by restrictions on speech. It can and must be regulated.